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Baker v DPP

Baker v DPP

Case [2017] VSCA 58 22 March 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0107

EARL BAKER (a pseudonym)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Intervener
and
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Intervener

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	MAXWELL P, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2016
DATE OF JUDGMENT:	22 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 58
JUDGMENT APPEALED FROM:	DPP v [Baker] (Unreported ruling, County Court of Victoria, 27 May 2016)

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CRIMINAL LAW – Interlocutory appeal – Application for a permanent stay of proceedings – Allegations of sexual penetration of a child under 16, knowingly possessing child pornography and use of on-line information to transmit child pornography – Applicant aged 17 at the time of the alleged offending but not charged until he turned 19 – Whether loss of opportunity to be dealt with in the Children’s Court constituted a breach of human rights under the Charter of Human Rights and Responsibilities – Right of a person charged with a criminal offence to be tried without unreasonable delay – Right to a fair trial – Right of a child to protection of his or her best interests - Whether a permanent stay at common law should be granted – R v Nona (2012) 6 ACTLR 203, Nona v The Queen (2013) 8 ACTLR 168, Sabet v Medical Practitioners Board (2008) 20 VR 414, HM Advocate v R [2004] 1 AC 462, Attorney-General’s Reference [No 2 of 2001] [2004] 2 AC 72, discussed - Jago v District Court (NSW) (1989) 168 CLR 23, Clark (a pseudonym) v The Queen [2016] VSCA 96, followed - Charter of Human Rights and Responsibilities ss 17(2), 23(2), 24(1), 25(2)(c), 25(3), 38, 39 – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin with Mr R J De Vietri	Victoria Legal Aid
For the Respondent	Mr C B Boyce QC with Mr T S Hoare	John Cain, Solicitor for Public Prosecutions
For The Attorney-General (Vic) (intervening by written submissions)	Ms M J Richards SC with Ms J M Davies	Victorian Government Solicitor
For the Victorian Equal Opportunity and Human Rights Commission (intervening by written submissions)	Mr S Holt QC	Victorian Equal Opportunity and Human Rights Commission

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Tate JA. I would make the orders which her Honour proposes, for the reasons which she gives.

TATE JA:

TABLE OF CONTENTS

Introduction and summary.................................................................................................. 1

The indictable offences ………………………………………………………………........ 3

The judge’s reasons ............................................................................................................... 5

The rights relied upon on appeal ………...………………………………………….…… 6

Interlocutory appeals and Charter issues ………………………………………………. 8

Is Baker impermissibly seeking collateral review of prosecutorial discretion? ......... 10

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v DPP

Details

AGLC: Earl Baker (a pseudonym)[1] v Director of Public Prosecutions , Attorney-General for the State of Victoria and Victorian Equal Opportunity and Human Rights Commission [2017] VSCA 58
Case: [2017] VSCA 58
Decision Date: 22 March 2017

CaseChat Overview and Summary

In the case of Baker v DPP, the applicant, who was 17 years old at the time of the alleged offences but not charged until he turned 19, sought a permanent stay of criminal proceedings against him. The applicant was accused of various serious offences, including sexual penetration of a child under 16, knowingly possessing child pornography, and using online information to transmit child pornography. The applicant argued that his right to be tried without unreasonable delay, his right to a fair trial, and the right of a child to protection of his or her best interests, as provided for under the Charter of Human Rights and Responsibilities, had been breached. The court was required to determine whether the applicant's rights had been infringed and if a permanent stay at common law should be granted.

The legal issues before the court included whether the delay in charging the applicant constituted a breach of his rights under the Charter of Human Rights and Responsibilities, specifically sections 17(2), 23(2), 24(1), 25(2)(c), 25(3), 38, and 39. The court also had to consider whether the delay resulted in a denial of the applicant's right to a fair trial and whether the delay had prejudiced the applicant's best interests as a child. Additionally, the court examined the common law principles applicable to permanent stays of proceedings, drawing on precedents such as R v Nona, Nona v The Queen, Sabet v Medical Practitioners Board, HM Advocate v R, Attorney-General’s Reference [No 2 of 2001], Jago v District Court, and Clark (a pseudonym) v The Queen.

The court examined the applicant's arguments and found that while there was a delay in charging him, this delay did not result in a breach of his rights under the Charter of Human Rights and Responsibilities. The court concluded that the delay did not prejudice the applicant's right to a fair trial or his best interests as a child. The court also determined that the common law principles did not support granting a permanent stay of proceedings. Therefore, the appeal was dismissed.

No specific final orders were mentioned in the text.

Orders